As the first month of 2023 draws to a close, Gorvins is considering all the legal changes waiting in the wings for the rest of the year. As always, we stay ahead of the curve on all these issues in order to best serve you, our valued clients.
In this short blog, we've collected some of the most important changes coming down the pike this year while giving you our take on what it all means.
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The Retained EU Law (Revocation and Reform) Bill 2022-2023 was introduced to the House of Commons in September 2022. This Bill makes provision for significant changes to the current status, operation and content of EU laws which following Brexit were retained or converted into UK law. If enacted this legislation would include provisions to revoke (or "sunset") direct EU legislation and some EU-derived subordinate legislation at the end of 2023. These provisions will essentially require the Government to review each piece of EU legislation and work out whether or not such legislation meets the governments desired policy. Any legislation to be retained would be done so via new legislation and everything else which is not the subject of any such new legislation would fall away.
Gorvins view: At the time of writing, it is not possible to identify with certainty all the laws that may fall within the scope of this legislation. Similarly, it is not possible to predict the extent to which the government will use its powers under the Bill to restate, reform, or preserve retained EU laws. In short, there is great uncertainty about what will unfold in 2023 in this area, but it will be crucial to monitor developments.
It is now some 5 years since we saw the introduction of the UK General Data Protection Regulation (UK GDPR) here in the UK, and most businesses are probably still scarred from the process of understanding this and implementing it within their organisation. As such, businesses probably won't be pleased to hear that Data Protection and Digital information Bill, which had its second reading in September 2022, intends to replace UK GDPR in its entirety.
The theory behind this is to simplify the UK's data protection framework, reduce the compliance burden on organisations and create flexibility whilst maintaining high data protection standards.
Gorvins view: Simplifying legislation is always welcome. However, businesses have spent a large amount of time and money getting up to speed and complying with UK GDPR. At a time where businesses need a degree of stability and certainty, is overhauling a significant piece of legislation that has only been in place for 5 years and impacts every single business in the UK the best way forward? The UK also have an "adequacy" status with the EU where we can move data freely between the UK and EU on the basis our data protection laws mirror those of the EU. Any significant divergence from EU GDPR risks that adequacy status which could make data flows with Europe much more difficult in the future – another burden on business.
ADVERTISING AND MARKETING
Online Advertising: The regulatory regime for online advertising will continue to be scrutinised in 2023. The Department for Digital, Culture, Media and Sport launched its Online Advertising Programme consultation (OAP) in 2022, and proposals for tackling harms attributed to online advertising are expected in 2023. Options mooted in the consultation range from continuing with (but expanding) the current self-regulatory system, to adopting a full statutory model including the creation of a new regulator to issue and enforce a statutory advertising code.
Greenwashing: Promoting green credentials has become an important part of marketing strategies for many businesses. Regulators will continue to respond in 2023 with more rules to eliminate misleading and unsubstantiated green claims (greenwashing) and increased enforcement activity against those guilty of misleading green claims.
Direct marketing: A final version of the Information Commissioner's Office (ICO) draft direct marketing code of practice may be published in 2023. The ICO is required to publish the code under the Data Protection Act 2018 and consulted on it in 2020. Finalising the code is paused while Parliament considers wider changes to the UK's privacy laws, but the ICO published detailed guidance on direct marketing towards the end of 2022. It seems likely that this guidance will form the backbone of any direct marketing code that is eventually published. The introduction of the Data Protection and Digital Information Bill (see "GDPR/Data Protection" section above) could also have a significant impact on marketers. The Bill currently extends the "soft opt-in" exception to the prior consent rule for electronic direct marketing to non-commercial organisations such as charities and not for profit organisations (currently only commercial organisations can reply on this) and introduces GDPR-sized fines for breaches of the Privacy and Electronic Communications Regulations 2003 (PECR).
Gorvins view: The introduction of GDPR-sized fines (€20m or 4% of global turnover if higher) for breach of PECR is a welcome move and should provide the ICO with some real teeth to get to grips with unwanted marketing communications.
Changes to EU retained laws: The Retained EU Law (Revocation and Reform) Bill 2022-2023 (see above under "EU Laws") could radically reshape the employment law landscape and wipe away long-established employment rights and protections. This could affect the Working Time Regulations 1998, the Agency Workers Regulations 2010 and TUPE, to name just a few.
Flexible working: In early December 2022, the government published its response to the 2019 consultation on making flexible working the "default position" and confirmed that the right to request flexible working will become a "day one right" for employees. Various other measures will also be introduced, including requiring an employer to consult with the employee if it is considering rejecting a request, permitting employees to make two requests in a 12-month period instead of one, reducing the period in which an employer must respond to a request from three months to two months and removing the requirement for employees to specify how the employer might deal with the effects of the flexible working request.
Sexual harassment: The government is supporting the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23, a Private Members' Bill which would create employers' liability for third-party harassment and introduce a duty on employers to take all reasonable steps to prevent sexual harassment of their employees. The Bill reflects the commitments made by the government in July 2021 in its response to the 2019 consultation on workplace sexual harassment and is expected to have its report stage and third reading on 3 February 2023.
Neonatal leave and pay: In March 2020, the government committed to introduce statutory neonatal leave and pay for up to 12 weeks for parents of babies requiring neonatal care. The government is supporting the Neonatal Care (Leave and Pay) Bill 2022-23, a Private Members' Bill, to progress this commitment. The government estimates that it will take around 18 months following Royal Assent of the Bill to implement neonatal care leave and pay, which will include changes to HMRC systems, sufficient notice for employers and payroll providers to update their pay systems, and extensive secondary legislation and guidance. However, it is exploring ways to reduce this timeline.
Environmental, social and governance: ESG issues continue to be under increasingly high scrutiny. For employers, the social aspects will likely be most significant. This encompasses an employer's approach to gender, diversity, pay, equality and human rights, including modern slavery and the supply chain, and also how it engages with its workforce and includes them in decisions that it makes.
Diversity, equity and inclusion: DEI will remain an important focus for employers as they seek to foster a more diverse and inclusive culture. We are seeing more transparency in both mandatory and voluntary diversity reporting, particularly in relation to the gender and ethnic balance of boards, but also increasingly across other levels of the organisation too. There is a growing awareness of the impact of socio-economic background and "intersectionality" (where inequalities based on protected characteristics combine to create overlapping and interdependent systems of disadvantage) on career progression and forward-thinking employers are taking steps to address this in their recruitment and promotion pipeline.
Case law: The Personal injury Sector also awaits the outcome of judgement in a number of test cases currently before the Court of Appeal in relation to ''fixed tariff cases''(cases where a fixed tariff award will apply such as most road traffic accident cases where the victim has suffered a whiplash injury or soft tissue injury to the shoulders or back) where the Claimant has also suffered a ''non-tariff injury'' (these injuries fall to be dealt with by reference to the Judicial College Guidelines and awards that fall within this category are often more generous). The judgement will hopefully provide some long-awaited guidance on the approach to be taken in valuing this type of Personal Injury Claim
Fixed Recoverable Costs: The Ministry of Justice is aiming to extend the fixed recoverable costs regime from October 2023 from most personal injury cases valued at £1,000 to £25,000 to most money claims with a value of £25,000 to £100,000. There are to be exceptions and e.g. noise -induced hearing loss claims (one specialism of our military personal injury department) is to have its own fixed costs regime, as potentially is clinical negligence.
So how do fixed costs regimes affect the injured (the 'consumer')? Many firms have felt the need to charge their clients a fee to reflect the shortfall between the fixed costs payable by the third party and the fees they need to remain profitable and indeed the introduction of the current regime saw many firms leave the personal injury sector, with many struggling to provide a quality service for the limited fees recoverable.
Gorvins view: Whilst the full details of the proposed extended regime are not expected until the Spring, 2023, we are confident that we can continue to successfully represent our clients without charging a shortfall fee. How? Through continuing to operate small, specialist teams dedicated to, and highly experienced in, their niche fields including general injury claims (low value and, high value), military claims, serious sports injury claims, brain injury claims and spinal cord injury claims.
No fault divorce: The Divorce, Dissolution and Separation Bill came into force on 6 April 2022. For divorce proceedings issued on or after 6 April 2022, it reforms the legal requirements for divorce, dissolution and judicial separation set out in the Matrimonial Causes Act 1973 (MCA 1973) and Civil Partnership Act 2004, to encourage a non-confrontational approach. The FPR were also amended for proceedings issued on or after 6 April 2022. HMCTS introduced new court forms and a new online divorce portal. Proceedings issued before 6 April 2022 continue under the legislation in force before then. The new law brings with it new and more straightforward terminology and permits the spouses or civil partners to jointly apply for a divorce or dissolution for the first time.
Civil partnerships and opposite sex couples: While opposite sex couples have been able to form civil partnerships since 2019, provision has not yet been made for opposite sex couples who are married to be able to convert their marriages to civil partnerships or for those who enter into civil partnerships to convert them to marriages. This is something that has been on the agenda since 2019 but has been delayed by the COVID-19 pandemic and may well progress during 2023.
Marriage Age: The Marriage and Civil Partnership (Minimum Age) Bill received Royal Assent on 28 April 2022 and comes into force on 27 February 2023. It raises the minimum age at which a person can marry or enter into a civil partnership to 18 years.
WILLS, TRUSTS & PROBATE
Technology: It is expected that the Ministry of Justice and the Office of the Public Guardian will look to use technology to modernize certain aspects of its operations. This is likely to include an online platform for Lasting Power of Attorneys given the current system is heavily paper based, costly and largely inefficient. This is combined with the Non-Contentious Probate (Amendments) Rules 2020 which now mandate that the HM Courts & Tribunal Service's digital probate platform is now used.
Witnessing of wills: It is expected that the Law commission and government will review the rules around witnessing of documents like wills such that remote witnessing may become a permanent change to the law here in the UK. The increased use of technology during the COVID-19 pandemic has helped bring this up the agenda.
Digital Assets: Work is expected to continue on raising awareness of digital assets and what happens to these when an individual passes away. The inability to access digital assets on the death or incapacity of a family member can cause lots of distress and frustration for family members.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.